Forster, Demandant; Forster, Tenant; Darcy Bolton and Wife, Vouchees

JurisdictionEngland & Wales
Judgment Date21 November 1815
Date21 November 1815
CourtCourt of Common Pleas

English Reports Citation: 128 E.R. 1079

Common Pleas Division

Darcy Bolton and Wife

bold them a month, or the greater part of the long vacation, and then change his mind, and say, "I will not sell, but will take the body of the Defendant under a capias ad aatisfacienduni," it might be the engine of very great oppression. The Plaintiff may, by the practice of the Court, sue out both these processes together, if he will, and may use either the one or the other, as he sees advisable, but by using the fieri facias first, he makes his election, and after having so elected, he cannot use the other process, till after the return of the first. We therefore think, that this writ of capias ad satisfaciendum, being sued out after the fieri facias had issued, and after the sheriff had taken the goods under it, and before its return, cannot be supported, Rule absolute, but on the terms of bringing no action against the sheriff. [373] FORSTER, Dentandant ; FORSTER, Tenant ; DARCY BOLTON AND WIFE, Vouchees. Nov. 21, 1815. The Court will not amend a warrant of attorney, which is the deed of the party.Where the vouchee's warrant of attorney, in a recovery, omitted in the body of the warrant to express against whom the plea of laud was, wherein the attorney was made, but it appeared by the precipe engrossed at the head of the warrant of attorney, who the demandant was, the Court held that the authority must refer to that plea described by the precipe, and permitted the recovery to pass. The vouchees, who lived in Canada, had in this recovery put in their place two persons named, "as their attornies jointly and severally to gain or lose in a plea of land," not saying "against Samuel Forster," the Demandant, as they regularly ought to have done ; and upon account of this omission, the officers refused to perfect the recovery. Frere Serjt. now moved to amend the warrant of attorney, by inserting the words "against Samuel Forster," upon the authority of the cases of Shaw, Daman-dent; Le Blanc, Tenant ; Ramsay and 11/ift, Vouchees (ante, iv. 98) ; and O'Brien, Trauchee (ante, iv. 196); and the Court expressing dissent, he was supported by the secondary, who stated, that it. had long been the daily practice of the Court to amend warrants of attorney. This motion being disallowed, he then moved that the recovery Might pass notwithstanding the omission of these words, for which he conceived there Was sufficient authority on the face...

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1 cases
  • Stewart v The Marquis of Conyngham
    • Ireland
    • Rolls Court (Ireland)
    • 16 Abril 1851
    ...Peale on Ev., ap. 41. Doe v. Phillips 10 Q. B. 130. In re Lamont 3 Scott, 666. Rogers v. JamesENR 7 Taunt. 434. Forster v. ForsterENR 6 Taunt. 373. Hume v. Burton 1 Ridg. P. C. 16. Hall v. Smith 14 Ves. 426. Pope v. Garland 4 Y. & Col. Ex. 394. Spunner v. WalshUNK 10 Ir. Eq. Rep. 400. The S......

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